Eastern Book Com. v.

D B
Modak
• Appellants were involved in the printing and publishing of various books
relating to the field of law.
• The original Judgments were copy-edited
• various inputs were added to the judgments and orders to make them user
friendly by making an addition of cross-references, standardization or
formatting of the text, paragraph numbering, verification and by putting
other inputs.
• The Appellants also prepared the headnotes comprising of two portions, the
short note consisting of catch/lead words written in bold; and the long note,
which is comprised of a brief discussion of the facts and the relevant
extracts from the judgments and orders of the Court.
• Appellants contentions,
• SCC is a law report which carries case reports comprising of the appellants’
version or presentation of those judgments and orders of’ the Supreme Court
after putting various inputs in the raw text and it constitutes an ‘original literary
work’ of the appellants in which copyright subsists under Section 13 of the
Copyright Act, 1957 (hereinafter referred to as “the Act”) and thus the appellants
alone have the exclusive right to make printed as well as electronic copies of the
same under Section 14 of the Act.
• Any scanning or copying or reproduction done of or from the reports or pages or
paragraphs or portions of any volume of SCC by any other person, is an
infringement of the copyright in SCC within the meaning of Section 51 of the Act.
• Respondent No. 1 had launched a software called “Grand Jurix” published
on CD-ROMs and the Respondent No. 2 had brought out a software package
called “The Laws” published on CD-ROMS.
• As per the Appellants, all the modules in the Respondents’ software
packages have been lifted verbatim from the Appellants’ work; the
Respondents have copied the Appellants’ sequencing, selection and
arrangement of the cases coupled with the entire text of copy-edited
judgments as published in the Appellants’ law report SCC, along with and
including the style and formatting, the copy-editing paragraph numbers,
footnote numbers, cross-references, etc.; and such acts of the Respondents
constitute infringement of the Appellants’ exclusive right to the same.
• Single Judge – High Court of Delhi
• No stay was given to the Appellants. However, before the Single
Judge, the Respondents conceded that the Appellants have copyright
in the head notes and as such they undertook not to copy these head
notes in their CD-ROMs.
• Division Bench – High Court of Delhi
• The Division Bench modified the judgment of the Single Judge by directing
the Respondents that they shall be entitled to sell their CD-ROMs with the
text of the judgments of the Supreme Court along with their own head
notes, editorial notes, if any, which should not in any way be copy of the
head notes of the Appellants. The Respondents were directed not to copy
the footnotes and editorial notes appearing in the journal of the Appellants.
• The Court did not accept the case of the Appellants that they have a
copyright in the copy-edited judgments of the Supreme Court. Aggrieved by
the decision of the Division Bench of Delhi High Court, the Appellants filed
the present appeals by special leave before the Supeme Court.
Supreme Court
Appellants’ Contentions:
• The Appellants do not claim a monopoly in publishing judgments of
the Supreme Court as they are being published by other publishers
also without copying from each other publication. The Appellants
claim that their copyright is in the copy-edited version of the text of
judgments as published in SCC which is a creation of the Appellants’
skill, labour and capital and there are contributions/inputs/ additions
of the Appellants in creating their version of the text of judgments as
published in SCC.
• Respondents’ Contentions:
• Judgments published in the Supreme Court Cases is nothing but
merely a derivative work based upon the judgments’ of the court,
which lacks originality as it does not depict independent creation
even a modicum of creativity. The inputs put by the Appellants are
nothing but expressing an idea which can be expressed in a limited
way and as such there cannot be a copyright.
• For claiming protection of copyright in a derivative work, originality is
a pre-condition and originality means only that the work was
independently created by the author as opposed to copied from other
works, and that it possesses at least some minimal degree of
creativity.
Issues:

• (1) What shall be the standard of originality in the copy-edited judgments of

the Supreme Court which is a derivative work and what would be required in a
derivative work to treat it the original work of an author and thereby giving a
protected right under the Copyright Act, 1957 to the author of the derivative
work ? and
• (2) Whether the entire version of the copy-edited text of the judgments
published’ in the Appellants’ law report SCC would be entitled for a copyright
as an original literary work, the copy-edited judgments having been claimed as
a result of inextricable and inseparable admixture of the copy-editing inputs
and the raw text, taken together, as a result of insertion of all SCC copy-editing
inputs into the raw text, or whether the Appellants would be entitled to the
copyright in some of the inputs which have been put in the raw text ?
• the Supreme Court took a view that the judgments would be a government
work and in the absence of any agreement to the contrary, the government
shall be the first owner of the copyright in the judgments of the Supreme Court.
• Section 52(1) expressly provides that certain acts enumerated therein shall not
constitute an infringement of copyright and Sub-clause (iv) of Clause (q)
excludes the reproduction or publication of any judgment or order of a Court,
Tribunal or other judicial authority, unless the reproduction or publication of
such judgment or order is prohibited by the Court, the Tribunal or other judicial
authority from copyright. The judicial pronouncements of the Apex Court would
be in the public domain and its reproduction or publication would not infringe
the copyright. The reproduction or publication of the judgments delivered by
the Supreme Court by any number of persons would not be infringement of a
copyright of the first owner thereof, namely, the Government, unless it is
prohibited.
• The question, therefore, is whether by introducing certain inputs in a
judgment delivered by a court it becomes “original copy-edited
judgment” and the person or authority or company who did so could
claim to have embodied the originality in the said judgment and the
judgment takes the colour of original judgment having a copyright
therein of its publisher.
• In many cases, a work is derived from an existing work. Whether in
such a derivative work, a new copyright work is created, will depend
on various factors. The required exercise of independent skill, labour
and capital in its creation by the author would qualify him for the
copyright protection in the derivative work.
• Copyright subsists in the copy-edited version of the text of judgments of the
courts as published in law reports, which have been created by the
application of skill, labour and capital which is not trivial or negligible. The
inputs put in the copy-edited judgments in SCC, is a derivative literary work
created from preexisting material of the judgments of the court which is in
public domain. The exercise of independent skill, labour and capital in its
creation by the author of such work, and the derivative literary work created
by the expenditure of the independent skill, labour and capital of the
Appellants gives them copyright in such creations. It is not necessary that
work created should have a literary merit. The courts can only evaluate
whether the skill, labour and capital actually employed, required in creating
the work, is not trivial or negligible.
• The word ‘original’ does not mean that the Work must be the
expression of original or inventive thought. Copyright Acts are not
concerned with the originality of ideas, but with the expression of
thought, and in the case of literary work, with the expression of
thought in print or writing. The originality which is required relates to
the expression of the thought. But the Act does not require that the
expression must be in an original or novel form, but that the work
must not be copied from another work. In deciding, therefore,
whether a work in the nature of a compilation is original, it is wrong to
consider individual parts of it apart from the whole. For many
compilations have nothing original in their parts, yet the sum total of
the compilation may be original. In such cases the courts have looked
to see whether the compilation of the unoriginal material called for
work or skill or expense. If it did, it is entitled to be considered original.
• Earlier decisions are the authority on the proposition that the work
that has been originated from an author and is more than a mere
copy of the original work, would be sufficient to generate copyright.
This approach is consistent with the “sweat of the brow” standards of
originality. The creation of the work which has resulted from little bit
of skill, labour and capital are sufficient for a copyright in derivative
work of an author. Decisions propounded a theory that an author
deserves to have his or her efforts in producing a work, rewarded.
• The derivative work produced by the author must have some distinguishable
features and flavour to raw text of the judgments delivered by the court. The
trivial variation or inputs put in the judgment would not satisfy the test of
copyright of an author. The inputs put by the Appellants in the judgments would
have had a copyright had we accepted the principle that anyone who by his or
her own skill and labour creates an original work of whatever character, shall
enjoy an exclusive right to copy that work and no one else would be permitted to
reap the crop what the copyright owner had sown. No doubt the Appellants have
collected the material and improved the readability of the judgment by putting
inputs in the original text of the judgment by considerable labour and arranged it
in their own style, but that does not give the flavour of minimum, requirement of
creativity. The exercise of the Skill and judgment required to produce the work is
trivial and is on account of the labour and the capital invested and could be
characterized as purely a work which has been brought about by putting some
amount of labour by the Appellants. Although for establishing a copyright, the
creativity standard applies is not that something must be novel or non-obvious,
but some amount of creativity in the work to claim a copyright is required. It does
require a minimal degree of creativity.
• Arrangement of the facts or data or the case law is already included in the
judgment of the court. therefore, creativity of SCC would only be addition of
certain facts or material already published, case law published in another law
report and its own arrangement and presentation of the judgment of the court
in its own style to make it more user friendly. The selection and arrangement
can be viewed as typical and at best result of the labour, skill and investment of
capital lacking even minimal creativity. It does not as a whole display sufficient
originality so as to amount to an original work of the author. To support
copyright, there must be some substantive variation and not merely a trivial
variation, not the variation of the type where limited ways/unique of
expression available and an author selects one of them which can be said to be
a garden variety. Novelty or invention or innovative idea is not the requirement
for protection of copyright but it does require minimal degree of creativity. In
our view, the aforesaid inputs put by the Appellants in the copy-edited
judgments do not touch the standard of creativity required for the copyright.
Held:
• “For the reasons stated in the aforesaid discussion, the appeals are partly
allowed. The High Court has already granted interim relief to the plaintiff-
appellants by directing that though the respondent-defendants shall be entitled
to sell their CD-ROMS with the text of the judgments of the Supreme Court along
with their own head notes, editorial notes, if any, they should not in any way
copy the head notes of the plaintiff-appellants; and that the defendant-
respondents shall also not copy the footnotes and editorial notes appearing in
the journal of the plaintiff-appellants. It is further directed by us that the
defendant-respondents shall not use the paragraphs made by the appellants in
their copy-edited version for internal references and their editor’s judgment
regarding the opinions expressed by the Judges by using phrases like concurring’,
‘partly dissenting’, etc. on the basis of reported judgments in SCC. The judgment
of the High Court is modified to the extent that in addition to the interim relief
already granted by the High Court, we have granted the above-mentioned
additional relief to the appellants.”